Kenneth Murchison v. Warden Lewisburg USP

566 F. App'x 147
CourtCourt of Appeals for the Third Circuit
DecidedMay 8, 2014
Docket13-3790
StatusUnpublished
Cited by5 cases

This text of 566 F. App'x 147 (Kenneth Murchison v. Warden Lewisburg USP) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kenneth Murchison v. Warden Lewisburg USP, 566 F. App'x 147 (3d Cir. 2014).

Opinion

OPINION

PER CURIAM.

Kenneth Murchison, proceeding pro se and in forma pauperis, appeals from the United States District Court for the Middle District of Pennsylvania’s order dismissing his complaint in part and granting summary judgment in favor of Defendants in part. For the following reasons, we will affirm in part, vacate in part, and remand.

I.

In December 2011, Murchison filed a pro se civil complaint in the District Court. Murchison indicated in the caption of the complaint that he was bringing suit pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Murchison named a variety of individuals as defendants, including officials at United States Penitentiary Lewisburg, where he was an inmate. In his complaint, Murchison alleged that during May 16-18, 2011, Defendants injured him through the use of excessive force, unlawful restraint, sexual assault, the denial of medical care, the denial of food and water, and torture. *149 Murchison sought injunctive relief and damages.

In January 2012, the Magistrate Judge issued a report and recommendation, which the District Court adopted, dismissing with prejudice Murchison’s claims for money damages against Defendants in their official capacities, dismissing with prejudice claims against certain individuals, and dismissing without prejudice constitutional claims against the remaining defendants. Murchison filed his first-amended complaint in April 2012. That complaint listed the remaining individual defendants and added as a defendant the Federal Bureau of Prisons (“BOP”). The complaint indicated in the caption that Murchison was bringing suit pursuant to Bivens. The claims raised in the complaint related to the May 2011 incident, and Murchison indicated that all violations were asserted under the Eighth Amendment. However, Murchison referenced the “Tort Claim Act” and cited 28 U.S.C. § 501, which provides that the Department of Justice, of which the BOP is a part, is a U.S. executive department. In June 2012, the Magistrate Judge filed a report and recommendation, which the District Court adopted in part and rejected in part. As the Magistrate Judge recommended, the District Court ordered that the claims against the BOP be dismissed with prejudice because the BOP is not a proper defendant in a Bivens action. The Magistrate Judge also found that it would be futile to allow Murchison to amend his pleading as to the BOP. The District Court allowed Murchison’s claims against the remaining individual defendants to proceed.

After the filing of the June 2012 report and recommendation, but before the District Court partially adopted it, Murchison filed a second-amended complaint. In that complaint, Murchison removed the BOP from the list of defendants. In the caption, Murchison again indicated that he was bringing suit pursuant to Bivens, but he also indicated that he sought relief under the FTCA. The complaint focused on the May 2011 incident and included for the first time claims related to a similar allegation of excessive force and retaliation that occurred on June 17, 2012. Murchison still sought injunctive relief and damages.

Defendants filed a motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure and, in the alternative, a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. In an August 2013 report and recommendation, the Magistrate Judge recommended dismissing any claim that Murchison attempted to raise under the FTCA because he did not name the United States as a defendant. The Magistrate Judge also recommended granting summary judgment in favor of Defendants as to the Bivens claims, concluding that Murchison failed to exhaust his administrative remedies. Over Murchison’s objections, which included a specific request for an opportunity to amend his complaint to add the United States as a defendant, the District Court adopted the report and recommendation, dismissed Murchison’s complaint as to his FTCA claims, and granted Defendants summary judgment as to the Bivens claims. Murchison timely appealed.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary review over both the District Court’s dismissal order and the order granting summary judgment. See Giles v. Kearney, 571 F.3d 318, 322 (3d Cir.2009); Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000). Because the District Court’s dismissal order did not indicate whether the dismissal was with or *150 without prejudice, we treat it as an “adjudication on the merits.” Fed.R.Civ.P. 41(b). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Summary judgment is proper only when the record “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

III.

A. Bivens Claims

The Prison Litigation Reform Act (“PLRA”) prohibits an inmate from bringing a civil rights suit alleging specific acts of unconstitutional conduct by prison officials “until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This requirement applies to federal prisoners, like Murchison, seeking relief through a Bivens action. See Nyhuis v. Reno, 204 F.3d 65, 68-70 (3d Cir.2000). The record confirms that Murchi son filed numerous requests for administrative remedies during the period between when he alleged his claims first arose and the filing of his complaint. However, none of the requests that Murchison properly submitted to the Central Office of the BOP, see 28 C.F.R.

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Bluebook (online)
566 F. App'x 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kenneth-murchison-v-warden-lewisburg-usp-ca3-2014.